In a recent order dated 11 February 2025, the Court of Appeal of the Unified Patent Court (“UPC”) shed further light on the concept of “independence” under Article 48(5) UPCA and confirmed that corporate representatives or major shareholders who hold extensive administrative and financial powers within a company may not represent that company before the UPC.
Suinno initially sued Microsoft for alleged infringement before the Central Division in Paris. Alongside its Statement of Claim, Suinno filed a confidentiality application (R. 262 and 262A RoP) to keep certain documents confidential from the public and from Microsoft. The first-instance judge-rapporteur partly granted the request, but Microsoft sought a panel review (R. 333 RoP) of that order. Ultimately, the Court of First Instance ruled that Suinno’s application was inadmissible on the basis that Suinno’s representative - who was simultaneously Suinno’s managing director and principal shareholder - could not fulfill the requirement of “independent representation.”
Suinno appealed that decision to the UPC Court of Appeal.
The Court of Appeal emphasized that under Article 48(5) UPCA, representatives must exercise their duties independently, enjoying specific rights and immunities (including privilege from disclosure). Crucially, it held that a lawyer or patent attorney employed by a party may still act independently unless that person also has “extensive administrative and financial powers” within the legal entity (e.g., holding a top management role or being a controlling shareholder). In such scenarios, the independence requirement is deemed compromised.
The Court noted that while the wording of Art. 48(5) UPCA closely mirrors Art. 19(5) of the Statute of the Court of Justice of the European Union (“CJEU”), the UPC does not necessarily adopt all of the CJEU’s interpretations regarding in-house counsel. The panel acknowledged that some national legal systems allow in-house attorneys broader rights of representation than the CJEU would typically permit before the EU Courts. As the UPC is structured as a common court of participating Member States - and not itself an EU institution - it retains autonomy in interpreting the UPCA’s independence requirement.
Companies appearing before the UPC should avoid appointing individuals who hold high-level management powers and/or significant shareholdings as their sole representative. Otherwise, the Court may declare filings and applications inadmissible.
In-house counsel and European patent attorneys employed by the litigant remain valid representatives if they can demonstrate the capacity to act independently. The UPC’s Code of Conduct (R. 290.2 RoP) mandates that all representatives - employed or external - serve the client’s interests without personal bias.
